01983873
03-23-2000
Edmund A. Johnson, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Mid West Region), Agency.
Edmund A. Johnson v. United States Postal Service
01983873
March 23, 2000
Edmund A. Johnson, )
Complainant, )
) Appeal No. 01983873
v. ) Agency No. 4-I-570-1029-96
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Great Lakes/Mid West Region), )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
bases of age (DOB: 10/6/33) and in reprisal for prior EEO activity in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1> Complainant
alleges he was discriminated against when he received a Fiscal Year
1995 (FY95) rating of "unacceptable," which excluded him from the FY95
Variable Pay Package. The appeal is accepted in accordance with EEOC
Order No. 960.001. For the following reasons, the Commission affirms
the FAD as clarified.
The record reveals that during the relevant time, complainant was employed
as a Postmaster at the agency's Main Post Office in West Fargo, North
Dakota. Based on an investigative memorandum dated February 17, 1995,
from the agency's Inspection Service, the Manager of Postal Operations
(MPO) concluded that complainant knowingly violated normal procurement
policies by splitting requisitions which cumulatively exceeded $10,000.00.
The MPO issued complainant a Letter of Warning (LOW) on March 28, 1995,
although the District Manager (DM) believed a Notice of Removal or a
"time off suspension" would have been more appropriate. After monitoring
complainant's procurement activities for a period of time and arranging
for supplemental training, the MPO agreed to have the LOW removed from
complainant's official personnel file. However, the MPO rated complainant
"unacceptable" for FY95 since complainant, had, in fact, violated the
agency's procurement policies.
Believing the agency discriminated against him, complainant sought EEO
counseling and subsequently filed a formal complaint on April 12, 1996.
At the conclusion of the investigation, when complainant failed to timely
request a hearing before an EEOC Administrative Judge, the agency issued a
final decision from which complainant now appeals. On appeal, complainant
contends that the agency failed to consider a number of his arguments.
Specifically, complainant asserts that all work orders were in compliance
with his spending authority. Complainant also asserts that the MPO told
him that there would be no further repercussions besides the LOW and that
he was threatened with removal if he did not drop his EEO complaint and
did not retire. The agency requests that we affirm its FAD.
After a careful review of the record, based on the standards set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Loeb v. Textron,
600 F.2d 1003 (1st Cir. 1979); and Hochstadt v. Worcester Foundation
for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976),
aff'd, 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas
to retaliation cases), the Commission disagrees with the agency's
conclusion that complainant failed to establish a prima facie case of
age discrimination or retaliation. Regarding retaliation, we find
that the MPO, who was named as the responsible agency official in
complainant's prior complaint, entered into a settlement agreement with
complainant approximately two months before he gave complainant a rating
of "unacceptable." Accordingly, we will infer a retaliatory motive.
See Devereux v. United States Postal Service, EEOC Request No. 05960869
(April 24, 1997). Furthermore, although complainant did not name any
similarly situated younger employees who received more favorable ratings,
we note that the Variable Pay Package impacted complainant's prospective
retirement which was an age-based issue raised in the prior complaint.
Accordingly, we will infer a discriminatory motive towards complainant's
age. See Enforcement Guidance on O'Connor v. Consolidated Coin Caterers
Corp., EEOC Notice No. 915.002 (September 18, 1996).
The agency articulated a legitimate, nondiscriminatory reason for
giving complainant a merit evaluation of "unacceptable," namely that
complainant was disciplined during the rating period for violating
postal procurement policies and procedures. Despite his contention to
the contrary, complainant did violate the procurement policy when he
requested a contractor to break down a total payment for one project
into separate increments which did not exceed the amount he was allowed
to spend without prior approval from the District. Complainant failed
to present evidence that the discipline was not the real reason for his
"unacceptable" merit evaluation or that "but for" his age, he would have
been rated differently. See Fodale v. Department of Health and Human
Services, EEOC Request No. 05960344 (October 16, 1998). The record
indicates that all Postmasters who had been disciplined during the
rating period were excluded from the FY95 Variable Pay Plan, and we
find no support in the record for complainant's contention that he was
threatened with removal if he did not drop his EEO complaint and did
not retire. Accordingly, we find that complainant failed to establish,
by a preponderance of the evidence, that the agency's explanation for
its action was a pretext for unlawful discrimination or retaliation.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the FAD as
clarified.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, MUST BE FILED
WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR
DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS
OF RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. In the
absence of a legible postmark, the request to reconsider shall be deemed
timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.604).
The request or opposition must also include proof of service on the
other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
You have the right to file a civil action in an appropriate United States
District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you
receive this decision. If you file a civil action, YOU MUST NAME AS THE
DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD
OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND
OFFICIAL TITLE. Failure to do so may result in the dismissal of your case
in court. "Agency" or "department" means the national organization, and
not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
3/23/00
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________
Date
________________________
Equal Employment Assistant
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.